On
February 22, 2017, the grand jury returned a superseding
indictment charging Braxton Taylor with two counts of
knowingly possessing a firearm while subject to a domestic
violence injunction in violation of 18 U.S.C.
§§922(g)(8) and 924(a)(2). Shortly after, the
defendant filed two pretrial motions: (1) a motion to
suppress evidence, dkt. no. 15, and (2) a motion to dismiss
the superseding indictment, dkt. no. 16. Magistrate Judge
David E. Jones issued reports and recommendations,
recommending that this court deny both motions. Dkt. Nos. 25,
26. The defendant objected to Judge Jones' recommendation
that the court deny the motion to dismiss the superseding
indictment. The court adopts both recommendations, overrules
the objection, and denies the motions.

I.
Motion to Suppress Evidence

The
defendant has asked the court to exclude from evidence a gun
found during a traffic stop of a car in which he was a
passenger. Judge Jones recommended that the court deny that
motion. The defendant has not objected to that
recommendation.

A.
Factual Background

The
parties do not dispute the facts relating to the motion to
suppress. On June 24, 2016, Milwaukee police officers Erin
Tischer and Michael Miller conducted a traffic stop on an SUV
for a cracked windshield. Dkt. No. 15 at 1. The officers
discovered that both the driver, Austin Sanders, and the
passenger (the defendant) had active arrest warrants.
Id. While officers took the subjects into custody,
the SUV remained illegally parked at a bus stop. Dkt. No. 17
at 2. Instead of towing the SUV, Officer Tischer asked for
and received consent to move the vehicle onto a side street.
Id. As she got into the SUV, she observed a handgun
in the SUV's driver door pocket. Dkt. No. 15 at 1.
Officers then searched the SUV and recovered another firearm
under the passenger seat. Id. The grand jury charged
the defendant with possession of the firearm the officers
found under the passenger seat; his motion to suppress
challenges the legality of its discovery.

B.
The Parties' Arguments

In the
motion to suppress, the defendant argued that the fact that
the officers found a gun in the driver door pocket of the SUV
did not give the officers a reason to believe that the SUV
contained any other evidence of criminal conduct. Dkt. No. 15
at 2-3. He argued that the totality of the circumstances
which led to the defendant's arrest were benign. Officers
had pulled Sanders over for a cracked windshield; Sanders and
the defendant had been cooperative during the stop; neither
had access to the vehicle when the officers searched it (both
were handcuffed and locked in the back of a squad car); the
defendant had no criminal record at the time and Sanders had
only one misdemeanor conviction; and the officers based
Sanders' arrest on the concealed nature of the gun, not
its illegal possession. Id. The defendant argued
that the officers had not articulated why they searched the
SUV, or what they thought they'd find by doing so.
Id. at 3.

The
government's response was quite brief. The government
stated that because the defendant was a passenger in the
vehicle, he lacked standing to challenge any search. Dkt. No.
17 at 2 (citing United States v. Walton, 763 F.3d
655, 666 (7th Cir. 2014); Rakas v. Illinois, 439
U.S. 128, 148 (1978)).

In his
reply, the defendant conceded that he possessed the firearm
the officers found under the passenger seat.[1] Dkt. No. 22 at 3.
He also told the court that he was not just a
passenger in the SUV-he was a close personal friend of the
driver. Id. The defendant contended that his
ownership of the gun, combined with his close personal
relationship with the driver, gave him the reasonable
expectation of privacy necessary to assert his Fourth
Amendment rights. Id.

C.
Judge Jones' Decision

Magistrate
Judge Jones disagreed. Judge Jones began by discussing the
Supreme Court decision on which the government relied for its
standing position, Rakas v. Illinois. Dkt. No. 25 at
2. Judge Jones found that the Rakas Court had
rejected the “target” theory of Fourth Amendment
standing that the defendant advanced. Dkt. No. 25 at 2. He
noted that Rakas expressly stated that someone whose
property was seized had no “‘legitimate
expectation of privacy' protected by the Fourth Amendment
‘in the glove compartment or area under the seat of the
car in which they were merely passengers. Like the trunk of
an automobile, these are areas in which a passenger
qua passenger simply would not normally have a
legitimate expectation of privacy.'” Id.
at 2-3 (quoting Rakas, 439 U.S. at 148-49).

Judge
Jones focused on the fact that, while the defendant had
asserted a possessory interest in the gun, he had
not asserted a possessory interest in the vehicle.
Dkt. No. 25 at 3. Judge Jones reasoned:

[S]howing an interest in the property seized is not enough.
The Supreme Court has held that ownership of seized property
is insufficient to give the owner an expectation of privacy
requisite to challenge its seizure. The owner must also have
a reasonable expectation of privacy in the place in which the
personal property is located. See Rawlings v.
Kentucky,448 U.S. 98, 105-06 (1980); see also
United States v. Lisk, 522 F.2d 228, 230-31 (7th Cir.
1975) (in denying motion to suppress a defendant's bomb
that was seized from the trunk of another party's [Mr.
Hunt] car, stating that “[t]he invasion of Hunt's
privacy was a violation of Hunt's Fourth Amendment
rights, but this violation is clearly not available to the
defendant as a basis for suppressing evidence acquired
thereby”).

Dkt. No. 25 at 3.

Because
the defendant was a passenger in Sanders' vehicle, Judge
Jones concluded that the defendant did not have a legitimate
expectation of privacy in the place searched. Id. at
4. He recommended that this court deny the motion to
suppress. Id.

D.
Analysis

In
Rakas v. Illinois, the Supreme Court considered
whether the petitioners-who had been passengers in the
vehicle at the time officers stopped it-had standing under
the Fourth Amendment to move to suppress evidence seized from
the car. Rakas, 439 U.S. at 133-34. The petitioners
conceded that they were “simply passengers; the owner
of the car had been the driver of the vehicle at the time of
the search[, ]” and did not assert an ownership
interest in the evidence they sought to suppress (a rifle and
shells). Id. at 130. They advocated broadening the
Fourth Amendment standing rule, “so that any criminal
defendant at whom a search was ‘directed' would
have standing to contest the legality of that search and
object to the admission at trial of evidence obtained as a
result of the search.” Id. (citing Jones
v. United States, 362 U.S. 257 (1960)).

The
Court rejected this “target” theory, and
re-affirmed that “‘Fourth Amendment rights are
personal rights which, like some other constitutional rights,
may not be vicariously asserted.'” Id. at
133-34 (quoting Brown v. United States, 411 U.S.
223, 230 (1973)). The Court reasoned:

[a] person who is aggrieved by an illegal search and seizure
only through the introduction of damaging evidence secured by
a search of a third person&#39;s premises or property has not
had any of his Fourth Amendment rights infringed.
Alderman, supra, 394 U.S. at 174, 89 S.Ct. at 966.
And since the exclusionary rule is an attempt to effectuate
the guarantees of the Fourth Amendment, United States v.
Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38
L.Ed.2d 561 (1974), it is proper ...

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